CONSTITUTIONAL COURT ABOLISHES DISCRIMINATING CUSTOMARY LAW AGAINST WOMEN OWNING PROPERTY
Article by our listed attorney
Fawzia Khan
On 8 December 2008, the Constitutional Court found in favour of women
who were previously discriminated against, when it pronounced judgement
in the case of ELIZABETH GUMEDE v PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA & 6 OTHERS Case CCT 50/08 [2008] ZACC 23, in a matter
involving customary marriages.
In 1968 Elizabeth and Amos Gumede married each other in terms of
customary law. Mrs. Gumede was a housewife who took care of the family
home and concentrated on raising the four children born from the
marriage. In 2003 the husband instituted divorce proceedings against his
wife. Before a divorce was granted, Mrs. G approached the Durban High
Court to obtain an order invalidating the statutory provisions that regulated
the proprietary consequences of her marriage.
During the course of the marriage, the Gumedes acquired two pieces of
immovable property one in Umlazi Township and the other at Adams
Mission, both in KZN.
The Recognition of Customary Marriages Act came into effect on 15
November 2000, provided that a customary marriage concluded after its
commencement (on 15 November 2000) is ordinarily a marriage in
community of property. However marriages concluded before 15 November
2000 will be governed by African customary law.
The KwaZulu Code of Zulu Law and Natal code of Zulu Law provides that a
woman cannot be an owner of property and that men should be the sole
owner of all property acquired during marriage.
The matter was taken up by the Legal Resources Centre who challenged
the validity of the section of the Recognition Act on the basis that it
discriminates against women in particular Elizabeth Gumde and other
women in the same position because of their gender, race and status.
The Women’s Legal Centre Trust was admitted as “amicus curiae” (friend of
the Court) and argued that Recognition Act discriminated on the grounds of
culture and custom and that it violated women's right to equality and dignity
as enshrined in the Constitution and International and Regional Treaties
that South Africa has rectified.
Although Mr. Gumede did not take object to his wife’s equality claim,
certain members of government at the national and provincial levels did.
The Constitutional Court found that piece of legislation to be inconsistent
with the Constitution and thus invalid. Mrs Gumede and women in her
position are now afforded protection which before the judgement they could
not enjoy because their marriages were governed by customary law.
Whilst the Court did not go so far as to extend protection to women in
polygamous marriages, it did note that parliament should be aware of this
gap in the law, and the need to pass legislation to protect this class of
women.
This decision means that all customary marriages are in community of
property and thus women are now afforded equality with regard to all their
assets acquired during the course of their customary marriages.
The decision by the Constitutional Court will not affect customary
marriages that have been terminated either by death or by divorce before
the date of the order namely 8 December 2008.
FAWZIA KHAN
FAWZIA KHAN & ASSOCIATES
ATTORNEYS CONVEYANCERS NOTARIES
Est. 1990
10 Flanders Drive, Mount Edgecombe
Tel 031- 5025670
Email: fawzia@fawzkhan.co.za
